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Dear David Lowery: Thanks for the Slander and Bad Metaphors

Going around on Facebook now is a post by musician David Lowery (of the bands Camper Van Beethoven and Cracker) in which he politely but condescendingly assails young people for copyright infringement. It’s in response to this post by NPR intern Emily White, in which she discusses how she has a hard drive full of music for which she has not paid.

There has been a good bit written about this post already, but I would like to make two additional points.

First, foremost, and “How dare you, sir!” on the list is this: David Lowery is guilty of slandering the free culture movement.

As is often the case of copyright maximalists, Lowery is relatively vague about who counts as defining the free culture movement. So before we even get to his accusations, let’s start with my rough-sketch, top-of-the-head list of some of the illustrative people and groups. Lowery cites Creative Commons specifically, but I would also add:

NGOs like EFF and Public Knowledge

Research centers like Harvard’s Berkman Center, Stanford’s Copyright and Fair Use Center, Duke’s Center for the Public Domain, and American University’s Center for Social Media

Virtually all of the technology press, from the generally-supportive pubs like Wired magazine to the super partisan sites like TechDirt (On that note, Mike Masnick’s coverage of SOPA was legitimately Pulitzer-worthy.)

A very long list of public intellectuals in fields such as law (Lessig, Jaszi, Litman, Boyle, Samuelson, …), communication (Vaidhyanathan, McLeod, Gillespie, Aufderheide), Library Science (Gasaway, Crews), and computer science (Felten).

That’s a long list. It’s not even the beginning of a complete list, either. So keep in mind that, when Lowery (or anybody else) attacks the free culture movement (or any of the derisive names they love to hurl at us—and yes, I include myself, though I’m increasingly more of an observer than a partisan), he’s attacking a LOT of institutions and people.

Now, on to some of the things Lowery says about us. Here are a few choice quotes:

“I just think that you have been presented with some false choices by what sounds a lot like what we hear from the ‘Free Culture’ adherents.”

“What the corporate backed Free Culture movement is asking us to do is analogous to changing our morality and principles to allow the equivalent of looting. Say there is a neighborhood in your local big city. Let’s call it The ‘Net. In this neighborhood there are record stores. Because of some antiquated laws, The ‘Net was never assigned a police force. So in this neighborhood people simply loot all the products from the shelves of the record store. People know it’s wrong, but they do it because they know they will rarely be punished for doing so. What the commercial Free Culture movement (see the “hybrid economy”) is saying is that instead of putting a police force in this neighborhood we should simply change our values and morality to accept this behavior. We should change our morality and ethics to accept looting because it is simply possible to get away with it. And nothing says freedom like getting away with it, right?”

And what is, in my opinion, the kicker:

“Technological and commercial interests are attempting to change our principles and morality. Rather than using our morality and principles to guide us through technological change, there are those asking us to change our morality and principles to fit the technological change–if a machine can do something, it ought to be done. Although it is the premise of every “machines gone wild” story since Jules Verne or Fritz Lang, this is exactly backwards. Sadly, I see the effects of this thinking with many of my students.

“These technological and commercial interests have largely exerted this pressure through the Free Culture movement, which is funded by a handful of large tech corporations and their foundations in the US, Canada, Europe and other countries.*”

I’ll start with the end of the last quote because it’s the most outrageous of the lot.

Funding for the free culture movement came from individual donations and charitable foundations long and strong before technology companies really stepped up to the plate at all with substantial funding, and corporate donations continue to be a minority of the funding for the free culture movement.

With any research at all, Lowery would see this for himself. In fact, his own research proves my point and disproves his. Follow the link to “their foundations” in his post; it’s a tax document by Creative Commons listing their donors. (As if this were some sort of secret.) It lists the following donors in the following amounts (resorted here from largest to smallest):

William and Flora Hewlett Foundation: $4 million

Omidyar Network Fund: $2.5 million

Google: $1.5 million

MacArthur Foundation: $700,000

Mozilla Foundation: $500,000

Fidelity Nonprofit Management Foundation: $315,162

Google is the ONLY tech company donor on the list, they get credit for maybe 15% of the funding (probably less; I think their individual donor base is substantial), and they were late to the party. Mozilla themselves are nonprofit. Omidyar and Hewlett may have made their money in technology, but their foundations are their own, not their companies’. Their foundations believe in CC’s mission the same way the Gates Foundation believes in fighting Malaria—because they believe it’s a good cause, not because it makes them (still) more money. This is especially true for Creative Commons, since the link between their mission and any of these companies’ (even Google’s) bottom lines is tenuous at best.

Creative Commons was created in 2001 and ran for years without any substantial corporate funding. Their own history says they were founded on generous funding by Duke’s Center for the Public Domain! (Does Lowery refuse to use Google or not look at his opponents’ webpages?) Then it was able to attract money from big foundations. Further, the very mission and purpose of Creative Commons was set long before tech corporations were giving much of anything, and if Google tried to re-arrange things so that they’re really in charge, they’d be shown the door. In short, calling CC one of “their [tech corporations’] foundations” is like calling the Brooklyn Nets “Jay-Z’s team.” In both cases, the investment is really a chance to put down money on something you think is worthwhile and get a front row seat to watch other people play the game—NOT anything like a controlling interest.

The EFF and Public Knowledge have similar-but-different histories and funding mixes, but the basic story is the same in their cases, too. Yes, technology companies are giving to free culture organizations. Yes, those organizations can use the money and will take it. But none of these orgs are Astroturf groups for the tech industry, and to call them such is slander, pure and simple.

The other outrageous accusation is that the free culture movement thinks we should change our morals to accept infringement. (Excuse me if I insist on the correct if technical term vs. “theft” and “looting”; more below.) This is just not true. Go back to the list above. To my knowledge, NONE of the roughly dozen scholars I cite have publicly advocated that we just accept infringement. Ditto the academic research institutes and NGOs. Some tech bloggers may something like that here and there, but I cannot think of any specific examples.

In other words, everybody who can in any serious way be identified as speaking for the free culture movement—as a movement—accepts something like the basic tenets of copyright and some degree of online enforcement. Even isolated examples of “forget copyright, let infringement happen” are exceedingly difficult to find from serious participants in the policy debate—and while I might have missed some examples, few scholars can claim to have spent more time over the last decade studying the debate over copyright, so it would be a rare thing indeed. Sure, EFF Board Member John Perry Barlow said that over a decade ago, but it’s never been EFF’s position. Public Knowledge has had a radically centrist position on copyright for its entire existence—for which they’ve gotten nearly zero credit, by the way. Creative Commons is a way for copyright holders to better effect their wishes! That is why another (smaller) corporate donor to CC is Microsoft, a company that loves copyright almost as much as do the movie and music industries.

The free culture movement believes in copyright and enforcement, but the movement exists to point out that the devil of copyright and its enforcement is in the details. Consider the size of penalties. Free culture advocates don’t think we should end all penalties for infringement. They just think that penalties in the millions for peer-to-peer use are ludicrous and utterly disproportionate. Even if we accept Lowery’s metaphor of stealing physical records (again, I do not; see below), there is no set of circumstances I can imagine that could lead to me being fined millions of dollars for stealing records.

If I were to hijack a truck full of records with a fully automatic machine gun, my fine would still not be a million dollars. Even including the opportunity cost of the time I would spend in prison, we’d be hard pressed to get to a million dollars. Million dollar fines are appropriate for large corporations and people who commit massive securities fraud—not people who create actual harms that are numbered in the hundreds or thousands.

If the RIAA and MPAA got to reshape the law, online civil liberties would be in serious danger. Nobody at the table (especially the congressional hearing witness table) thinks infringement is just fine and dandy. Yet content industry lobbyists and their allies in Congress would be completely happy throwing due process and the First Amendment on the bonfire of every-stronger copyright enforcement—and they regularly bristle at the idea that anybody would stand in their way and accuse the free culture movement of supporting the “pirates”. Like Lowery, they do so in lieu of discussing the complicated trade-offs in a serious way.

Imagine a world where ISPs are legally required to disclose your full contact information to anybody who alleges copyright infringement as having occurred at your IP address. Imagine a giant copyright filter in the middle of the internet. Imagine a world where the mere allegation of infringement is enough for the US government to seize your web domain with no day in court, no explanation, and nobody to hold accountable when your business is seriously derailed. Sadly, this last one is not even imaginary, but actual US policy.

Being horrified by violations of civil liberties is not the same thing as being complicit in copyright infringement. Copyright can be too strong or too weak. We can disagree on which it is without disagreeing about whether copyright should exist or whether it should be enforced at all.

Instead of engaging these subtleties, however, Lowery straw-mans the whole free culture movement, portraying us as urging complicity in widespread infringement. For shame.

My first and main point, again, but more clearly: David Lowery has slandered a lot of good people and groups. He ignores the generous individual and foundation funders, the underpaid professionals (no, really; Cary Sherman’s salary of $3.2m is roughly the size of the annual budget for the whole EFF), and the scholars who get paid the same whether they support more or less copyright. These people are the reason this movement got started in the first place and they make it go. He has accused this very thoughtful group of people of encouraging law breaking, when they cannot repeat often enough or loudly enough that they are doing no such thing. He owes them all a deep and sincere apology.

(I won’t hold my breath, but in Lowery’s case, there’s at least an outside chance that it might happen. Unfortunately, though, such slander and creative pulling-of-“facts”-out-of-behinds is all in a day’s work from the content industry’s professional lobbyists. The chance of one of them apologizing is just slightly more likely than Jay-Z entering the next NBA All Star game—and winning MVP.)

A second point is that Lowery is also guilty of abusing the metaphor of property—though this is utterly unsurprising, since it’s a staple of what I call the “strong copyright” coalition’s rhetoric. I have a great deal to say about this. In fact, here’s a journal article I wrote, “Breaking and Entering My Own Computer: The Contest of Copyright Metaphors.” (Available for free online; don’t tell Lowery, but not everybody who creates information and culture has an interest in maximizing copyright exclusivity.)

The short version is that the metaphor of tangible property is extremely misleading. If I copy your work, you still have it, while if I steal your car, it’s gone. Thus, copying without permission is not stealing; it is either infringement or permitted for certain reasons, such as criticism, library preservation, or an expired period of protection.

Accusing infringers of theft, looting, or piracy is sloppy, but the poor fit of the metaphor benefits those who want ever-stronger copyright. I have no fair use right to your car, the government will never tell you the fixed rate at which you have to rent me your car, and your ownership right in your car never expires. If I ran the RIAA, I’d want to make it that way for recorded music, too. Thus, invoking the metaphor of physical property is super handy. Forget the fact that copyright exists for different reasons and works very differently; the less different they become, the better I’m doing my job.

Because of this, I propose alternate metaphors that are something of a better fit. One of which I’m particularly fond is: Copyright is the air conditioning in the bazaar of cultural production. We’ll never agree on the perfect temperature, but we need to set it to a middling level to maximize the work that gets done by all of the different people working in the studio. If the AC is rarely on and the room is too hot (copyright is too loose), stuff will melt together, and only those who work well in heat with stuff melting together (scholars, jam rock bands, open source programmers) will get work done. Conversely, if the AC is on constantly (copyright is too strong), everything will be frozen in place, and only those who can use things that are frozen in place (big media companies, authors and musicians who are already successful) can confidently work under these conditions.

This metaphor does a much better job conveying the contested, complicated world of cultural production. Nobody agrees on the temperature because we have different goals, but we have to find a temperature that approaches the best possible mix of production we want to see in total.

Unlike the property metaphors, the AC-in-the-bazaar metaphor does not suggest any easy answers, but that’s a virtue—again, unless you’re trying to score cheap political victories for the content industries. We can even describe Creative Commons and GPL licenses as a “hot room” in the relatively cool arena of the broader cultural economy, where mixing and remixing are easier. Anyway, that’s my second point, that Lowery’s metaphor is hackneyed (though he’s not alone), and we need to think about these things more subtly.

Finally, I don’t have the time or energy to develop this into a third point, but I cannot believe that any musician would pen this exact sentence: “Fairly compensating musicians is not a problem that is up to governments and large corporations to solve.”

Really? Because to this outsider, it sure seems like large corporations in recording and concert promotion have spent decades figuring out how to cash in on fans’ love of musicians while giving as little of that revenue as possible to musicians. I’m on the side of musicians in this fight, and it is a fight against large corporations. The occasional principled stand by Pearl Jam or PR stunt by String Cheese Incident notwithstanding, the only way to stop the concert promoters from pillaging artists’ livelihoods is probably for governments to step in. There are similar stories to tell on licensing revenues and contract language on the recording side.

This is a fight that should unite Lowery and the free culture movement. It would, however, require that musicians organize against the corporations that use those same musicians as mascots whenever it’s time to ask for help from the government on issues such as copyright.

P.S. For the record: Get your music, movies, books, and software legally. There are now very many easy, cost-effective, and convenient ways to do this. But some of them require ethical decisions, such as how much your local public radio or TV station is worth to you—the original “Pay your fair share, damnit!” media cause.

One thought on “Dear David Lowery: Thanks for the Slander and Bad Metaphors”

Well, that right there gives the game away. There are three ‘free culture’ movements, the pro-copyright Lessigite/CreativeCommons one, the ‘4 freedoms restoring’/Stallmanite one, and the abolitionist/natural rights one.

You’re evidently referring to the first.

I suggest those who aspire to free culture should divest themselves of the ‘copyright is a priori good’ crutch. Shift paradigms. The 18th century privilege was unethical at the outset. Cease the doublethink that you can have both liberty and the privilege of copyright that abridges it.